Citation NR: 9606597
Decision Date: 03/12/96 Archive Date: 03/16/96
DOCKET NO. 94-11 840 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
Entitlement to an increased evaluation for residuals of a
fracture of the left clavicle, currently rated 10 percent
disabling.
Entitlement to a compensable evaluation for residuals of a
fracture of the left thumb.
Entitlement to a compensable evaluation for residuals of a
fracture of the left index finger.
REPRESENTATION
Appellant represented by: Nevada Commission for Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Richard T. Foss, Associate Counsel
INTRODUCTION
The claims folder indicates that the veteran had active
service from August 1987 to December 1991 which has not been
verified.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from adverse rating determinations by the
Reno, Nevada, Regional Office (RO) of the Department of
Veterans' Affairs (VA). A RO hearing was held in July 1993,
a transcript of which is of record.
The Board notes that the appellant filed his present claims
in January 1992 at the Detroit, Michigan, VARO. Upon moving
to Nevada later on, his case file was transferred to the
Reno, Nevada, VARO and his claims were adjudicated by the
Reno VARO.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant asserts that he is entitled to at least a 20
percent disability evaluation for his left shoulder
disability and at least 10 percent for both his residuals of
a fracture of the left thumb and residuals of a fracture of
the left index finger.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claim file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against the appellant’s claims for an increased evaluation
for residuals of a fracture of the left clavicle, and
compensable evaluations for residuals of a fracture of the
left thumb and residuals of a fracture of the left index
finger.
FINDINGS OF FACT
1. The appellant’s left clavicle disability does not result
in dislocation of the clavicle or nonunion of the left
clavicle, nor is there competent medical evidence that the
appellant is unable to raise his left arm above shoulder
level.
2. The appellant’s residuals of a fracture of the left thumb
do not result in ankylosis of his left thumb.
3. The appellant’s residuals of a fracture of the left index
finger do not result in ankylosis of his left index finger.
CONCLUSIONS OF LAW
1. An increased evaluation for residuals of a fracture of
the left clavicle is not warranted. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 3.321, 4.7, 4.20, and Part 4, Diagnostic
Codes 5010, 5201 and 5203 (1995).
2. A compensable evaluation for residuals of a fracture of
the left thumb is not warranted. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 3.321, 4.7, 4.20, 4.31 and Part 4,
Diagnostic Code 5224 (1995).
3. A compensable evaluation for residuals of a fracture of
the left index finger is not warranted. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.20, 4.31 and Part 4,
Diagnostic Code 5225 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that it has found all of the
appellant's claims for increased evaluations to be well-
grounded within the meaning of 38 U.S.C.A. § 5107(a). An
allegation of increased disability establishes a well-
grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629
(1992). The Board is further satisfied that all relevant
facts have been properly developed with respect to these
claims and that no further assistance to the appellant is
required in order to comply with VA's duty to assist him in
the development of these claims, as mandated by 38 U.S.C.A.
§ 5107(a).
Disability evaluations are determined by the application of
VA’s Schedule for Rating Disabilities (Rating Schedule) -
38 C.F.R. Part 4 (1995). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred in or
aggravated by military service and their residual conditions
in civil occupations. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 4.1 (1995).
Entitlement to an increased evaluation for residuals of a
fracture of the left clavicle
Service connection for status post-fracture of the left
clavicle, with resection of the acromioclavicular joint and
deformity of the mid-left clavicle, was granted by rating
action of April 1992. A ten percent disability evaluation
was assigned for such residuals at that time. Such
disability rating was confirmed and continued by later RO
decisions. The appellant now appeals the assignment of a ten
percent disability evaluation.
The April 1992 rating action which awarded the appellant
service connection for residuals of a left clavicle fracture
did so under 38 C.F.R. Part 4, Diagnostic Code 5203 (1995).
Diagnostic Code 5203 addresses impairment of the clavicle or
scapula. A 20 percent disability evaluation under Code 5203
is assigned for dislocation of the major or minor clavicle or
nonunion of the major or minor clavicle with loose movement.
For nonunion of the major or minor clavicle without loose
movement or malunion of the major or minor clavicle, a 10
percent disability rating is given.
The appellant’s left shoulder disability may also be rated
under Diagnostic Code 5010, as there is competent medical
evidence of arthritis of the left shoulder. Under 38 C.F.R.
Part 4, Diagnostic Code 5010 (1995), arthritis due to trauma,
substantiated by x-ray findings, is rated on the basis of
limitation of motion under the appropriate diagnostic code
for the specific joint involved. The applicable Code for a
shoulder disability is Diagnostic Code 5201. When the
limitation of motion of the specific joint involved is
noncompensable, a rating of 10 percent will be assigned for
each major joint affected by the limitation of motion. The
shoulder is considered to be a major joint. 38 C.F.R.
§ 4.45(f) (1995).
Diagnostic Code 5201 addresses limitation of motion of the
arm. Under Code 5201, a 40 percent evaluation is warranted
when the major arm can only be lifted 25 degrees from the
side. For limitation of motion of the major arm restricted
to a midway point between the side and shoulder level, a 30
percent disability rating is warranted. Finally, a 20
percent rating for limitation of motion is granted when the
veteran can only lift his major arm to shoulder level.
The appellant examined by the VA in February 1992. Physical
examination of the appellant at that time disclosed a 5 1/2
inch scar inferior to the distal left clavicle, the absence
of his distal left clavicle, and deformity of the mid-left
clavicle. Shoulder range-of-motion was full and equal
bilaterally: zero-180 degrees on bilateral flexion; zero-180
degrees on bilateral abduction; zero-90 degrees on bilateral
internal rotation; and, likewise, zero-90 degrees on
bilateral external rotation. Thus, the appellant did not
suffer from loss of range of motion at this time. He did,
however, experience some painful movement on left abduction
at extreme range.
X-rays taken of the appellant’s left clavicle in February
1992 revealed an old healed fracture of the mid-clavicle. No
dislocation was noted then. Similarly, no other
abnormalities were reported at this time. The February 1992
VA examiner’s diagnosis was history of fracture of the left
clavicle with resection of the acromioclavicular joint, with
impingement syndrome and deformity of the mid-left clavicle.
The RO also secured all of the appellant’s current VA
treatment records during the process of adjudicating his
present claims. The appellant reported for initial VA
assessment and treatment of his left shoulder disability in
March 1992. His complaints at that time were pain and
decreased range-of-motion. On physical examination at that
time, the appellant was again observed to have passive and
active range-of-motion within normal limits; though with pain
on active flexion and abduction. His shoulder strength was
characterized as “good.” The appellant remarked that because
he was left-handed, his writing was affected by the shoulder
pain and discomfort.
X-rays of the appellant’s left shoulder were taken in
December 1992. Mild degenerative changes of the left
shoulder were discovered at this time. Additionally, there
were found narrowing of the subacromial joint space, mild
narrowing of the glenohumeral joint space, and increased
separation of the acromioclavicular joint. The appellant’s
left shoulder range-of-motion in December 1992 was between
120 and 130 degrees on abduction and in excess of 130 degrees
on anterior flexion. No impingement was observed then.
In May 1993, the appellant complained of pain in his left
shoulder. He indicated that the pain was not as severe as
before his surgery but that it was worsening. Physical
examination of the appellant in May 1993 revealed no atrophy
of his left shoulder. As on previous occasions, he had full
range-of-motion of his left shoulder; he, too, had mild
tenderness with full abduction at this time. The appellant
did not have a positive impingement or apprehension sign in
May 1993, and his left shoulder sensation was intact. The
acromioclavicular joint was non-tender to palpation at this
time. The VA orthopedist commented in May 1993 that the
results of the appellant’s left shoulder surgery were
“satisfactory,” merely noting “some residual tenderness on
extreme abduction.”
The appellant was afforded a second VA examination in August
1993. His left hand and arm strength were reported to be
“slightly reduced” then. The August 1993 VA examiner noted
“striking” anterior protrusion of the proximal fragment of
the left clavicle and marked displacement in the mid-
clavicle, with the distal fragment being posterior; the
examiner also remarked that the outer clavicle protruded
upward. As on earlier examination, the appellant was
observed to have full range-of-motion of the left shoulder,
again with some pain on movement. The appellant could place
his left shoulder in full abduction, internal and external
rotation, and forward elevation; the elevation was said to
have been performed with “some” difficulty, strain, and
complaint of pain.
X-rays taken at such examination disclosed the resection of
the outer clavicle with upper displacement of the fragment.
The old angulated clavicle fracture was also seen. No other
abnormalities were reported at this time.
The August 1993 examiner noted that the appellant was unable
to lift overhead or push and pull in a vigorous fashion on
his left side due to his left shoulder. However, the
examiner further noted that the appellant had learned
techniques to reduce pain and discomfort in his left
shoulder, and that the appellant was pleased with such
progress. The appellant’s previous left shoulder treatment
course was criticized by such examiner. The August 1993
examiner was of the opinion that the appellant required more
rigorous treatment because of his age and the fact that a
dominant extremity was involved (the appellant is left-
handed).
The Board concludes that the symptomatology reported above,
in both the appellant’s VA examination reports and treatment
records, do not warrant an increased evaluation at this time
under either Diagnostic Code 5203 or Code 5201.
A higher evaluation under Diagnostic Code 5203 is not
assignable because there is no evidence of dislocation of the
clavicle or nonunion of the left clavicle. The appellant has
not contended otherwise. The appellant already receives a 10
percent disability rating under Code 5203. In order to
receive a 20 percent evaluation under such Code, dislocation
or nonunion of the clavicle must be demonstrated by competent
medical evidence.
The appellant is not entitled to a higher evaluation under
Diagnostic Code 5201, as well. There is competent medical
evidence that the appellant has had some limitation of motion
of his left shoulder, however not to the extent to warrant a
higher evaluation under Code 5201. To receive a 20 percent
evaluation under such Code, the veteran must not be able to
raise his arm above the shoulder level. The appellant has
consistently been able to do that.
For the loss of limitation of motion reported above, the
appellant can be awarded a 10 percent disability evaluation
under Diagnostic Code 5010. A 10 percent rating is granted
under such Code when there is loss of range-of-motion but
such loss is not compensable under the appropriate diagnostic
code for the specific joint involved - in this case,
Diagnostic Code 5201.
In summary, the appellant is not entitled to an increased
evaluation for his left shoulder disability at the present
time. The appellant can currently be awarded at most a 10
percent rating under Diagnostic Code 5203 or a 10 percent
evaluation pursuant to Diagnostic Code 5010. The 10 percent
disability evaluation assigned for the appellant’s left
shoulder disability compensates him for the pain, discomfort,
and functional limitation caused by such disability. If the
appellant’s service-connected disability deteriorates in the
future, he is entitled to seek an increased disability rating
for such disability at that time.
The Board views the appellant’s claims regarding his left
shoulder disability to be credible and probative, and has
given appropriate consideration to the claimed impact of the
left shoulder disability upon his life. But without
objective medical evidence of a more severe disability, a
disability rating in excess of 10 percent cannot be given at
the present time.
In reaching its decision, the Board has considered the
complete history of the disability in question, as well as
the current clinical manifestations and the effect that the
disability may have on the earning capacity of the appellant.
38 C.F.R. §§ 4.1, 4.2, 4.16 (1995). The nature of the
disability has been reviewed and functional impairment has
been taken into account. 38 C.F.R. § 4.40 (1995). The
current findings do not reflect that the veteran has
functional impairment in excess of that contemplated by the
current rating. The Board further finds in this case that
the disability picture is not so exceptional or unusual so as
to warrant an evaluation on an extraschedular basis.
38 C.F.R. § 3.321(b)(1) (1995). The criteria for an
increased evaluation have not been met. 38 C.F.R. § 4.7
(1995).
Entitlement to compensable evaluations for residuals of a
fracture of the left thumb and residuals of a fracture of the
left index finger
Service connection for status post-fracture of the proximal
and distal phalanges of the left thumb and for status post-
fracture of the proximal phalanx of the left index finger
were granted by an April 1992 rating action. Noncompensable
disability evaluations were assigned for both such residuals
at that time. Such disability ratings were confirmed by
later RO decisions. The appellant now appeals the assignment
of zero percent disability ratings for both such
disabilities.
The April 1992 rating action which awarded the appellant
service connection for status post-fracture of the proximal
and distal phalanges of the left thumb did so under 38 C.F.R.
Part 4, Diagnostic Code 5224 (1995).
Diagnostic Code 5224 concerns ankylosis of the thumb, both
favorable and unfavorable. For favorable ankylosis of the
major thumb, a 10 percent disability rating is given. A 20
percent evaluation is granted for unfavorable ankylosis of
the major thumb. Diagnostic Code 5224 does not list criteria
for a zero percent rating.
The appellant was awarded service connection for status post-
fracture of the proximal phalanx of the left index finger
under 38 C.F.R. Part 4, Diagnostic Code 5225 (1995).
Diagnostic Code 5225 covers ankylosis of the index finger,
again both favorable and unfavorable. Under Code 5225, 10
percent disability evaluations are assigned for both
favorable and unfavorable ankylosis of the major index
finger. Such Code only contemplates 10 percent disability
ratings.
Neither Diagnostic Code 5224 nor Code 5225 contains
provisions for a zero percent disability evaluation.
However, 38 C.F.R. § 4.31 (1995) expressly states that where
a diagnostic code does not provide for a zero percent
evaluation, a zero percent evaluation shall be assigned when
the requirements for a compensable evaluation are not met.
The appellant, as indicated above, was given his first VA
examination in February 1992. Physical examination of the
appellant’s left hand at that time revealed a snapping of the
metaphalangeal joint of the left thumb when moving from
flexion to extension. Only slight limitation of motion of
the left distal interphalangeal joint was observed at that
time. The appellant had zero-90 degrees flexion range-of-
motion on the right for such joint and zero-82 degrees on the
left. He had zero-180 degrees extension range-of-motion
bilaterally.
X-rays taken of the appellant’s left hand in February 1992
did not demonstrate any abnormality of his left hand. There
was no evidence of fracture, dislocation, or lesions, and
joint spaces were reported to be within normal limits.
The February 1992 VA examiner’s diagnoses, despite the x-ray
findings related above, were status post-fracture of the
proximal and distal phalanges of the left thumb, with
residual snapping of the metaphalangeal joint, and status
post-fracture of the proximal phalanx of the left index
finger, with minimal decrease of flexion at the distal
interphalangeal joint. The February 1992 VA examiner did not
diagnose the appellant with ankylosis of the left thumb or
index finger, nor is ankylosis mentioned anywhere in such VA
examination report.
The RO secured all of the appellant’s current VA treatment
records. Such VA treatment records are fairly substantial.
Though, on occasion, the appellant did complain of his left
thumb and index finger, his VA treatment during this period
centered on his left shoulder disability. Furthermore, the
appellant only seemed to mention his left thumb and index
finger in passing.
For example, the appellant sought VA treatment in May 1992
for grinding and pain in his left shoulder, while complaining
that his left thumb and index finger hurt and locked at
times. The VA physician concentrated upon the appellant’s
left shoulder at this time. Likewise, the appellant obtained
VA treatment in August 1992 primarily for his left shoulder.
At that time, he also complained of “some problems” with his
left thumb and index finger. Such an accounting of his left
thumb and index finger would not seem to reflect considerable
disabilities. Indeed, the appellant in December 1992 made
complaints concerning his right thumb, but said nothing of
his left thumb.
In May 1993, the appellant again went for VA treatment for
his left shoulder. He noted then, as well, that his left
thumb locked in flexion. No complaints were made about his
left index finger at that time. Examination of the
appellant’s left thumb in May 1993 merely disclosed some
swelling. No ankylosis was found.
The appellant was afforded a second VA examination in August
1993. In August 1993, the appellant stated that he could not
place the tip of his left index finger onto the thenar
eminence of the thumb. He claimed that his left thumb would
“snap or hang up occasionally” and was “sometimes sore in the
proximal flexor pulley region.”
Upon observation of the appellant’s left hand in August 1993,
there was found “no obvious abnormality.” Crepitus was
disclosed at the flexor pulley of the thumb; a trigger
response could not be obtained. Again, there was no obvious
abnormality of the left index finger. However, the examiner
did note that the appellant was unable to place the tip of
his finger firmly against the thenar muscles of the thumb and
palm.
X-rays of the appellant’s left hand were taken in August
1993. As beforehand, it was reported to be a normal study.
There was revealed no evidence of fracture, subluxation, bony
abnormality, or soft tissue abnormality.
The August 1993 VA examiner declared that the appellant’s
left thumb problem could be easily corrected. As to the
appellant’s left index finger, the VA examiner wrote, “The
mild loss of flexion of the index finger in my opinion is not
rateable (sic).” The VA examiner did not diagnose the
appellant with either ankylosis of the left thumb or left
index finger.
The Board concludes that the symptomatology reported above,
in both the appellant’s VA examination reports and treatment
records, do not presently warrant a compensable evaluation
for his left thumb under Diagnostic Code 5224 or a
compensable evaluation for his left index finger under Code
5225.
A compensable disability rating for the appellant’s left
thumb under Code 5224 is not assignable at the present time
because there is no competent medical diagnosis of ankylosis
of his left thumb.
Likewise, the appellant is not currently entitled to a
compensable evaluation for his left index finger under
Diagnostic Code 5225 because there is no competent medical
evidence of ankylosis of his left index finger.
The appellant, thus, has not satisfied the requirements for
compensable disability evaluations under Diagnostic Code 5224
or 5225. He is accordingly assigned zero percent disability
evaluations for both service-connected disabilities pursuant
to 38 C.F.R. § 4.31 (1995).
The Board considers the appellant’s reporting of his
symptomatology to be credible and probative, and has given
appropriate consideration to this reporting and his other
statements. However, without objective medical evidence of
more severe disabilities, compensable disability ratings
cannot be given at the present time.
In reaching its decision, the Board has considered the
complete histories of the disabilities in question as well as
the current clinical manifestations and the effect that these
disabilities may have on the earning capacity of the
appellant. 38 C.F.R. §§ 4.1, 4.2, 4.16 (1995). The natures
of the disabilities have been reviewed and functional
impairment has been taken into account. 38 C.F.R. § 4.40
(1995). The Board further finds in this case that the
disability pictures are not so exceptional or unusual so as
to warrant evaluations on an extraschedular basis.
38 C.F.R. § 3.321(b)(1) (1995). The criteria for compensable
evaluations for residuals of a fracture of the left thumb and
for residuals of a fracture of the left index finger have not
been met. 38 C.F.R. § 4.7 (1995).
ORDER
Entitlement to an increased evaluation for residuals of a
fracture of the left clavicle is denied.
Entitlement to a compensable evaluation for residuals of a
fracture of the left thumb is denied.
Entitlement to a compensable evaluation for residuals of a
fracture of the left index finger is denied.
V. L. JORDAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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